Single Anti-Gay Comment Can Create a Hostile Work Environment

On August 13, 2008, in Kwiatkowski v. Merrill Lynch, New Jersey’s Appellate Division ruled that a single anti-gay comment can create a hostile work environment in violation of the New Jersey Law Against Discrimination (“LAD”). In particular, the court ruled that a jury could find that an employee had been unlawfully harassed based solely on his supervisor calling him a “stupid fag” once, under her breath. That is important because the law requires harassment to be either sufficiently severe (bad enough) or pervasive (frequent enough) that the terms and conditions of employment have been materially changed and the employee’s work environment is hostile.

The decision in that case is unpublished. That means it is not binding on other New Jersey courts. However, it is still a significant decision for its reasoning and analysis, which other courts are likely to consider, if not follow.

The plaintiff in that case, Mr. Kwiatkowski, is gay. Although he told only a few of his coworkers, he assumed it was common knowledge that he was gay.

Mr. Kwiatkowski alleged that his immediate supervisor, Theresa Wonder, interrupted Mr. Kwiatkowski’s conversation with a coworker and, for no apparent reason, said “I can’t believe you. I was standing right there! How dare you be so unprofessional!” before storming off. He further claimed that a few minutes later, Ms. Wonder passed him again and called him a “stupid fag” under her breath. Not surprisingly, Mr. Kwiatkowski was shocked and highly offended by her derogatory comment. When he left work that day, his knees buckled, he began to hyperventilate, and he no longer felt safe speaking to anyone at work.

In contrast, Ms. Wonder denied ever making the discriminatory comment, and contended that she did not even know if Mr. Kwiatkowski was gay. She claimed that when Mr. Kwiatkowski was talking to a fellow employee, she heard him refer to her as a “bitch.” She told him this was inappropriate language, and he became irate and threw his hands up in the air. She then asked to speak with him in a conference room, and at that meeting told him she was offended by his remark and warned him that the department had zero tolerance policy.

Before the case reached the appellate court, the trial court ruled that a jury did not need to decide whether Ms. Wonder made that discriminatory comment because, even if she had, it did not rise to the level of actionable harassment. Specifically, the lower court concluded that although the comment was extremely derogatory and offensive to gay men, and Ms. Wonder made the comment because of Mr. Kwiatkowski’s sexual orientation, it was not so severe or pervasive that a reasonable person would believe the conditions of his employment had been altered and his working environment was hostile and abusive. In other words, the lower court found it was bad, but not bad enough to be unlawful harassment.

The Appellate Division disagreed. Although it noted that it is the “rare and extreme” case in which a single incident is so severe that it can create a hostile work environment, the phrase “stupid fag” is a statement that would make someone in Mr. Kwiatkowski’s position “question his identity and his decision to identify himself as a gay man in a straight world.” Accordingly, the appellate court reversed the lower court’s decision, and sent the case back to be decided by a jury.

In the same decision, the Appellate Division reviewed the trial court’s decision to dismiss Mr. Kwiatkowski’s claim that Merrill Lynch fired him because of his sexual orientation. That aspect of the decision is discussed in a separate article, which you can read here.

The employment lawyers at Rabner Baumgart Ben-Asher & Nirenberg, are experienced at representing employees in New Jersey, New York State, and New York City whose employment law rights have been violated.

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